Cornerstone Properties Private Limited Vs M/S. Salarpuria Hi-Rise Private Limited

CORNERSTONE PROPERTIES PRIVATE LIMITED COMPANY INCORPORATED UNDER THE COMPANIES ACT, 1956 AND HAVING ITS REGISTERED OFFICE AT NO. 583, 9^TH MAIN ROAD, OFF CMH ROAD, INDIRANAGAR, 1^ST STAGE, BENGALURU- 560 038 REP. BY ITS AUTHORISED SIGNATORY MR. KIRAN POONACHA

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...PETITIONER

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(BY SRI. DHYAN CHINNAPA, SR. COUNSEL FOR SRI. SUNDARA RAMAN M. V., ADVOCATE)

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AND

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M/S. SALARPURIA HI-RISE PRIVATE LIMITED COMPANY INCORPORATED UNDER THE COMPANIES ACT, 1956 AND HAVING ITS REGISTERED OFFICE

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AT 4^TH FLOOR, SALARPURIA WINDSOR, NO. 3, ULSOOR ROAD, BENGALURU-560 042 REP. BY ITS AUTHORISED SIGNATORY MR. ASHWIN SANCHETI

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…….RESPONDENT (BY SRI.K.G. RAGHAVAN & SRI. G.L. VISHWANATH., SR. COUNSELS FOR SRI. BADRI VISHAL., ADVOCATE)

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THIS CRP IS FILED UNDER SECTION 115 OF CPC., AGAINST THE ORDER DATED 29.06.2024 PASSED ON IA NO.2 IN OS NO.3130/2024 ON THE FILE OF XXII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU., REJECTING THE IA NO.2 FILED UNDER ORDER 7 RULE 11(a) AND (d) OF CPC., FOR REJECTION OF PLAINT.

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IN CRP NO.468/2024

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BETWEEN

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MAVERICK PROPERTY INVESTMENTS PRIVATE LIMITED COMPANY INCORPORATED UNDER THE COMPANIES ACT, 1956, AND HAVING ITS REGISTERED OFFICE AT NO. 583, 9TH MAIN ROAD, OFF CMH ROAD, INDIRANAGAR, 1ST STAGE, BENGALURU - 560 038. REP. BY ITS AUTHORISED SIGNATORY, MR KIRAN POONACHA.

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...PETITIONER

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(BY SRI. DHYAN CHINNAPA., SR. COUNSEL FOR SRI. SUNDARA RAMAN M V., ADVOCATE)

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AND

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1 . M/S. SATTVA DEVELOPERS PRIVATE LIMITED COMPANY INCORPORATED UNDER THE COMPANIES ACT, 1956,

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AND HAVING ITS REGISTERED OFFICE AT, 4TH FLOOR, SALARPURIA WINDSOR, NO. 3, ULSOOR ROAD, BENGALURU - 560 042. REP. BY ITS AUTHORISED SIGNATORY, MR ASHWIN SANCHETI.

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2 . M/S PARTH INFRASTRUCTURE LLP BODY CORPORATE UNDER THE LIMITED LIABILITY PARTNERSHIP ACT, 2008, AND HAVING ITS OFFICE AT, 4TH FLOOR, SALARPURIA WINDSOR NO.3, ULSOOR ROAD, BENGALURU - 560 042. REP. BY ITS AUTHORISED SIGNATORY, MR. ASHWIN SANCHETI.

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3 . M/S. TATA CONSULTANCY SERVICES LIMITED COMPANY INCORPORATED UNDER THE COMPANIES ACT, 1956, AND HAVING ITS REGISTERED OFFICE AT TCS HOUSE, 21 D.S. MARG, FORT, MUMBAI - 400 001. REP. BY ITS GENERAL MANAGER MR. K.A. CHINAPPA

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…….RESPONDENTS

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(BY SRI.K.G. RAGHAVAN & SRI. G.L. VISHWANATH., SR. COUNSELS FOR SRI. BADRI VISHAL., ADVOCATE FOR R1 & R2)

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THIS CRP FILED UNDER SECTION 115 OF CPC, AGAINST THE ORDER DATED 29.06.2024 PASSED ON I.A.NO.2 IN OS NO.3136/2024 ON THE FILE OF THE XXII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, AT BANGALORE CITY (CCH-7) REJECTING THE I.A.NO.2 FILED UNDER ORDER VII RULE 11 (d) OF CPC, FOR REJECTION OF PLAINT.

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THESE PETITIONS HAVING BEEN HEARD AND RESERVED ON 14.02.2025 AND COMING ON FOR PRONOUNCEMENT OF ORDERS, THIS DAY, THIS COURT MADE THE FOLLOWING:

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CORAM: HON'BLE MR JUSTICE R DEVDAS

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CAV COMMON ORDER

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(PER: HON'BLE MR JUSTICE R DEVDAS)

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Although we are dealing with two separate Civil Revision

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Petitions arising out of two separate suits in O.S.Nos.3130/2024 and 3136/2024, nevertheless the two petitioners are sister concerns/Companies who have business transaction with two other respondent sister concerns/companies viz., M/s.Salarpuria Hi-Rise Private Limited and M/s.Sattva Developers Pvt. Ltd., and therefore, the matters were clubbed, heard together and are being disposed of by this common order.

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For the sake of convenience, the parties shall be referred to in terms of their ranking before the Trial Court.

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O.S.No.3130/2024 was filed by M/s.Salarpuria Hi-Rise Pvt. Ltd. against M/s.Corner Stone Properties Pvt. Ltd., for

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recovery of Rs.37,15,86,284/- in respect of a transaction that took place in the year 2010-11. Similarly, M/s.Sattva Developers Pvt. Ltd., along with M/s.Parth Infrastructure filed O.S.No.3136/2024 against M/s.Maverick Property Investments Pvt. Ltd. and M/s.TATA Consultancy Services Ltd., for specific performance of the Memorandum of Understanding (MoU) dated 01.07.2011, while receiving balance sale consideration of Rs.34,87,50,000/-. Alternative prayer was also made to direct the first defendant to pay Rs.141,76,51,481/- as damages towards the loss in appreciation of value of Schedule ‘D’ property and an additional prayer to direct the first defendant to refund Rs.30,43,48,623/- along with interest at the rate of 18% p.a. from 30.11.2011, etc. The contesting defendants filed applications under Order VII Rule 11 of the Code of Civil Procedure to reject the plaints, mainly on the ground that the suit is hopelessly barred by limitation. Both the applications having been dismissed, the contesting defendants have filed these Civil Revision Petitions.

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Learned Senior Counsel Sri Dhyan Chinnappa,

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appearing for the defendants submitted that admittedly the parties entered into a Memorandum of Understanding (MoU) on 14.02.2011 to constitute a Special Purpose Vehicle (SPV), for joint development of land totally measuring 29 acres 35 guntas. It is not disputed that the Director of the defendantCompany had entered into a MoU dated 04.12.2010 with the owners of the property and that he had paid Rs.1,65,00,000/as refundable deposit and Rs.95,00,000/- as non-refundable deposit (totally Rs.2,60,00,000/-) to the owners. The Director of the defendant-Company had agreed to pay a total deposit of Rs.10,00,00,000/- to the owners. It is contended by the plaintiff that it has paid Rs.5,30,00,000/- under the MoU to enable the defendant to procure the suit schedule property to further enable the parties to jointly develop the same. Learned Senior Counsel, while pointing out to the MoU dated 14.02.2011, submitted that it is clearly stated in paragraph-VII (3) that by assigning the MoU or other

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arrangements to the SPV, all business risks associated with the MoU shall devolve fully on the SPV only.

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Learned Senior Counsel would also submit that a similar issue between the same parties i.e, M/s.Salarpuria HiRise Limited and Sri B.P.Kumar Babu arose for consideration before this Court in CMP No.75/2020 where similar such MoU was entered into between the parties on the same date i.e., 04.02.2011 in respect of different set of lands. As in the present case, there too a legal notice was got issued by the plaintiff on 13.11.2019 calling upon the defendant to specifically perform and complete all obligations under the MoU, failing which the defendant was called upon to refund the amount deposited by the plaintiff under the MoU, along with interest. However, since an arbitration clause was contained in the said MoU, the plaintiff herein had to approach this Court by filing a Civil Miscellaneous Petition invoking Section 11(6) of the Arbitration and Conciliation Act, 1996, for appointment of an Arbitral Tribunal to adjudicate the disputes

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arising out of MoU dated 14.02.2011. This Court has held that the plaintiff-Company is guilty of waiting for an unreasonably long time to initiate action against the defendant. It was noticed that not a scrap of paper is available on record to show that the parties had mutually agreed to extend the time for completion of the contract. In view of the time fixed therein i.e., four months to procure the lands and get the scheduled lands converted from agricultural to non-agricultural purposes, this Court held that after lapse of four months, no efforts were made by the plaintiff-Company to seek repayment of the advance amount. Accordingly, having come to the conclusion that it is a clear case of ‘deadwood’, the CMP was dismissed.

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Learned Senior Counsel would submit that although it is true that the MoU does not contain any specific timeline, nevertheless, it has been contended in the plaint that the defendant has played fraud on the plaintiff by giving evasive reply that it would perform its part of the contract. Learned

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Senior Counsel would submit that having regard to such averments made in the plaint, Section 17 of the Limitation Act, 1963, would provide that in case the suit is based upon fraud of the defendant, then the period of limitation shall not begin to run until the plaintiff has discovered the fraud, with reasonable diligence. If such is the contention, the plaintiff cannot contend that for seven years after signing the MoU, the defendant protracted performance of its part of the contract. Article 54 of the Limitation Act, provides that the time would begin to run, if no such date is fixed, when the plaintiff has noticed that performance is refused. In this regard, attention of this Court is drawn to the plaint averments where it is contended that from the year 2012, the plaintiff made several requisitions, but the defendant failed to provide the requisite documentation for conducting due diligence in respect of the schedule property. It is contended that even after repeated requests, reminders and follow up, from the year 2012 to 2024, at every instance the defendant has pleaded for further

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extension of time to furnish the requisite documentation that were necessary to conduct the due diligence. It is therefore clear from the plaint averments, that there is no pleading to the effect that the defendant gave anything in writing to extend the period for completion of the MoU. It is submitted that the Hon'ble Supreme Court has clearly held that mere exchange of letters or e-mails will not extend the time of limitation.

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It is further pointed out that the plaintiff got issued a legal notice dated 18.12.2019 calling upon the defendant to come forward to fulfill its obligation under the MoU. It is stated in paragraph-22 that inspite of the legal notice being issued, the defendant failed to adhere to the claims of the plaintiff. For the sake of argument, it was contended that if the time started ticking for the plaintiff after issuance of the legal notice dated 18.12.2019, even then the suit should have been filed on or before 17.12.2022. But the suit is filed on 25.05.2024, long after the period of limitation. The learned

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Senior Counsel would therefore submit that even on a plain reading of the plaint, it is clear that the suit is barred by limitation.

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However, it is stated in paragraph-33 of the plaint that the suit is filed well within the period of limitation, however by way of abundant caution, it is also stated that due to COVID19 and the orders passed by the Hon'ble Supreme Court on 23.03.2020, the period of limitation in all proceedings under general or specific laws, whether condonable or not, with effect from 15.03.2020, the time stands extended. In this regard, having regard to the submissions made by the learned Senior Counsel appearing for the plaintiff who had placed reliance on Cognizance for extension of limitation, In RE (2022) 3 SCC 117, learned Senior Counsel Sri Dhyan Chinnappa has taken this Court through the following three judgments:

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i) Sagufa Ahmed and Others Vs. Upper Assam Plywood Products Pvt. Ltd. & Others - (2021) 2 SCC 317

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ii) Arif Azim Co. Ltd. Vs. Aptech Ltd. - AIR 2024 SC 1347

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iii) Delhi Development Authority Vs. Tejpal

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and Others - (2024) (7) SCC 433

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Learned Senior Counsel submitted that in Sagufa , in

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paragraph-17, the directions issued In RE . Cognizance has been clarified that what was extended by order of the Apex Court was only the period of limitation and not the period upto which delay can be condoned in exercise of discretion conferred by the statute. In Arif Azim , it was clarified, having regard to the provisions of the Limitation Act that while extension of prescribed period in relation to an appeal or certain applications has been envisaged under Section 5, the exclusion of time has been provided in the provisions like Sections 12 to 15 thereof. When a particular period is to be excluded in relation to any suit or proceedings, essentially the reason is that such a period is accepted by law to be the one not referable to any indolence on the part of the litigant, but being relatable to either the force of circumstances or other

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requirements of law. Further in Delhi Development Authority , it was also clarified that if the limitation period had already expired before the pandemic, such cases could not take shelter behind the general relief granted by the Apex Court. The decision in Sagufa Ahmed , was respectfully agreed with, in Delhi Development Authority . It is further submitted that having regard to the undisputed facts, more particularly, the legal notice issued by the plaintiff on 18.12.2019, three years period for filing the suit came to an end on 17.12.2022. There was no impediment for the plaintiff to have filed the suit after 28.02.2022 till 17.12.2022. The directions issued by the Apex Court will not enable the plaintiff to claim exclusion of the said period between 15.03.2020 to 28.02.2022.

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O.S.3136/2024:

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M/s Salapuria Hi - Rise Private Limited entered into MoU with the first defendant on 09.04.2011 for joint development of 104 acres and 02 guntas wherein the first

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defendant undertook to acquire the said extent of land. It was represented by the first defendant that it has secured right, title and interest by way of agreements of sale, in respect of 60 acres of land. The first plaintiff, being the sister concern of M/s Salapuria Hi - Rise Private Limited, thereafter approached the 2^nd defendant-M/s TATA Consultancy Services stating that it intended to establish an IT/ITES Special Economic Zone Project. A supplementary MoU was entered into between M/s Salapuria Hi - Rise Private Limited and the 1^st defendant on 01.07.2011 wherein the 1^st defendant was permitted to sell through the 1^st plaintiff, an extent of 35 acres of land to the 2^nd defendant, from out of 104 acres and 02 guntas. In furtherance of supplementary MoU, the 1^st defendant and the 2^nd plaintiff entered into an MoU on 01.07.2011, under which the 2^nd plaintiff agreed to purchase 35 acres from the 1^st defendant for a sale consideration of Rs.4.5 Crores per acre (approximately Rs.157.5 Crores for 35 Acres). The 1^st defendant agreed to make out a marketable title within a

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period of 5 months from the date of MoU dated 01.07.2011. Learned Senior Counsel submitted that the same condition for completion of the terms of the contract within a period of 5 months is also found in the first MoU dated 09.04.2011. On 01.07.2011, the plaintiffs No.1 and 2 also entered into an MoU between themselves, wherein the 1^st plaintiff agreed to purchase 35 Acres of land from the 2^nd plaintiff, at the rate of Rs.6.5 Crores per acre. In furtherance thereto, the 1^st plaintiff entered into an MoU with the 2^nd defendant on 15.07.2011, wherein the 2^nd defendant agreed to purchase 35 Acres from the 1^st plaintiff at the rate of Rs.7.17 Crores per acre. Further, the 2^nd defendant entered into an agreement of sale on 02.11.2011 with both the plaintiffs.

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Learned Senior Counsel submitted that the plaintiffs have made a bald averment that the 1^st defendant was unable to procure the entire extent of land and it went on seeking extension of time and it is contended that by the conduct of the parties, it is clear that the time was continuously

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extended. It is clear that there is no documentary evidence to prove that the parties mutually agreed in writing to extend the time for completion of the contract. Here again, the plaintiffs claim that the parties were meeting continuously and have exchanged letters and e-mails, to support their contention that the parties mutually agreed to extend the time. It is also stated in the plaint that the 2^nd defendant initiated arbitral proceedings against the 1^st defendant and the plaintiffs. The arbitral proceedings were held in A.C.No.23 of 2019 by Hon’ble Justice Shri Jayant Patel. It is pointed out from paragraph No.26 of the plaint that the 1^st defendant opposed the prayer for specific performance and also attempted to make a counter claim against the plaintiffs herein. The Arbitral Tribunal however held that such counter claim inter se the respondents cannot be considered in the arbitral proceedings initiated at the hands of the 2^nd defendant herein.

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Learned Senior Counsel would submit that this averment in the plaint is sufficient to say that the plaintiffs

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have admitted the resistance at the hands of the 1^st defendant to the claim of the plaintiffs. Nevertheless, no action was initiated by the plaintiffs, within the period of limitation. However, it is contended that the 1^st plaintiff got issued a legal notice dated 06.08.2019 and the 1^st defendant gave a reply on 07.09.2019, refuting the claim of the 1^st plaintiff. The 1^st plaintiff filed a Civil Miscellaneous Petition in CMP No.342/2019 seeking appointment of an Arbitrator. However, the said CMP was rejected by this Court on 17.01.2020. The 2^nd plaintiff also got a legal notice issued on 08.08.2019 and the 1^st defendant gave a reply on 07.09.2019 refuting the claim of the 2^nd plaintiff. The 2^nd plaintiff filed a Civil Miscellaneous Petition in CMP No.381/2019 and the same was dismissed on 17.01.2020. In paragraph No.34 of the plaint, the plaintiffs have admitted that the two Special Leave Petitions filed by the plaintiffs were also rejected by the Hon’ble Supreme Court on 18.05.2020. However, it is contended by the plaintiffs that the arbitral proceeding initiated by the 2^nd defendant in

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A.C.No.23 of 2019 was disposed of on 22.03.2021 while directing the respondents therein to perform their part of the contract in respect of 18 Acres and 39.5 Guntas of land (land which was acquired by the 1^st defendant). The claim for specific performance of 8 Acres and 29.5 Guntas were rejected by the Arbitral Tribunal on the ground that neither the 1^st defendant nor the plaintiffs had title in respect of the said portion of the land.

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It is also contended by the plaintiffs that the 1^st defendant had in the meanwhile entered into MoUs with other entities and the 1^st defendant had mortgaged ‘C’ schedule property to a Bank. The plaintiffs filed an application under Section 34 of the Arbitration and Conciliation Act, 1996, raising a challenge to the arbitral award. It is also stated that the 2^nd defendant also preferred an application under Section 34 of the Act, aggrieved by the rejection of its claim to a portion of the suit schedule property. Learned Senior Counsel would therefore submit that it is clear from a plain reading of

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the plaint that although cause of action arose for the plaintiffs on a reply given by the 1^st defendant, refuting the claim of the plaintiffs on 07.09.2019, the suit is filed on 25.04.2024, long after the period of limitation had expired. Similar averments are made in the plaint seeking to take support from the general directions issued by the Hon’ble Supreme Court pursuant to the outbreak of COVID-19.

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Arguments of learned Senior Counsel

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Sri.K.G.Raghavan, on behalf of the plaintiffs :

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It is contended that in O.S.No.3130/2024, the prayer

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is for recovery of Rs.5.30 Crores along with interest. It is contended that the plaint averments make it clear that the plaintiff has alleged fraud against the defendant. Therefore, it is contended that in terms of Section 17 of the Indian Contract Act, 1872, which defines ‘fraud’ to mean and include the enumerated acts therein on the part of a party to the contract, which includes a promise made without any intention of performing it, the cause of action would arise only when the

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first defendant expressly denied the claim of the plaintiffs and not before that. It is contended that a co-ordinate bench of this Court in CRP No.449/2018 dated 18.06.2024 in the case of Bhagyaraju Vs. Smt.Prema has held that the cause of action for suit for recovery of money arises on the date of refusal to perform obligation.

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It is contended that similar submission would apply even in respect of the other suit in O.S.No.3136/2024, although it is a suit for specific performance of the contract and a certain timeframe is fixed in the MoU therein. It is contended that when this Court is considering an application under Order VII Rule 11 of CPC, the issue of the suit being barred by limitation, cannot be considered without permitting the plaintiffs to lead evidence to substantiate its contention. Learned Senior Counsel has placed reliance on Mr.Jagadish Poonja Vs. The South Canara Hotel Complex , ILR 2016 KAR 31 ; Saleem Bhai and Others Vs. State of Maharashtra and Others , (2003) 1 SCC 557 , where it is

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held that while considering such application, the averments made in the plaint alone are germane. However, since question of limitation is a mixed question of law and facts, the plea of limitation cannot be decided as an abstract principle of law divorced from facts. Plea of limitation can be considered as a preliminary issue only when the Court is of the opinion that the whole suit may be disposed of on the issue of law alone. Nevertheless, under such circumstances, the plaint cannot be rejected on the ground of limitation without recording evidence.

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As regards reliance placed by the learned Senior Counsel for the first defendant on Delhi Development Authority (supra) in the matter of general directions issued by the Hon'ble Supreme Court, learned Senior Counsel submitted that the observations of the Court must be read in the context in which they appear. When judgments of Court are conflicting, the Court should follow the one that lays down the law correctly. In this regard, attention of this Court is

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drawn to the facts obtained in Sagufa Ahmed, Arif Azim and Delhi Development Authority (supra) , to contend that the Apex Court was considering issues arising out of an appellate jurisdiction and not in respect of a suit. Reliance is sought to be placed on judgments of the High Court of Delhi and the High Court of Punjab and Haryana.

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Heard Sri Dhyan Chinnappa, learned Senior Counsel appearing for the petitioners-defendants and Sri K.G.Raghavan, learned Senior Counsel appearing for the respondents-plaintiffs and perused the petition papers.

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What is glaring in the present cases is the fact that as between the same parties this Court has already decided in CMP No.75/2020 dated 21.08.2024 that having regard to the material available on record, it is clear that the petitionerCompany (plaintiffs herein) are guilty of waiting for an unreasonably long time to initiate action against the respondents. It was observed that no a scrap of paper is available on record to show that the parties herein mutually

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agreed to extend the time for completion of the contract. This Court had noticed the decisions of the Apex Court that once a party has asserted his claim and the other has either denied such claim or failed to reply to it, the cause of action will arise after such denial or failure, as the case may be. This Court has noticed the three principles of law enunciated in the judgments of the Apex Court regarding the manner in which the point of time when the cause of action arose may be determined. In terms of the said judgments of the Hon'ble Supreme Court, it was important to find the “breaking point” at which any reasonable party would have abandoned the efforts at arriving at a settlement and contemplated referral of the dispute to arbitration. Such breaking point would then become the date on which the cause of action could be said to have commenced.

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Applying the same principles, this Court finds from the plaint averments in both the suits, that a legal notice was got issued by the plaintiffs to the first defendant on

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06.08.2019, 08.08.2019 and 18.12.2019. In O.S.No.3130/2024, when legal notice was issued on 18.12.2019, no reply was given by the first defendant. In O.S.No.3136/2024, where legal notices were issued on 06.08.2019 and 08.08.2019, replies were given by the first defendant on 07.09.2019, refuting the claims of the plaintiffs.

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It would therefore be futile on the part of the plaintiffs in O.S.No.3130/2024, to contend that since no reply was given by the defendant, the time did not commence from the date of the legal notice. As seen from the facts obtained in both the suits, business transaction between the parties commenced in the year 2011. Various MoUs were entered into between the parties in respect of various immovable properties. It is also clear that the defendant had not acquired absolute right, title and interest in the lands which the parties were dealing with. Although no specific timeframe is fixed in the MoU dated 14.02.2011 (in O.S.No.3130/2024), nevertheless, a legal notice was got issued on 18.12.2019. Even if it is the

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contention of the plaintiff that no reply was given by the defendant, nevertheless, the conduct of the defendant, cannot be held as favourable to the plaintiff. Having regard to the large number of business transactions between the parties and the fact that a reply was given by the first defendant on 07.09.2019, even before a legal notice was got issued in the other case on 18.12.2019, the silence of the defendant in not giving a reply, is a clear indication that the defendant was not prepared to comply with the claim of the plaintiff. This aspect of the matter, coupled with the fact that the first defendant raised a counterclaim before the Arbitral Tribunal in the year 2019, is a clear indication that the first defendant refuted the claim of the plaintiffs. Therefore, this Court is of the considered opinion that the time started ticking for the plaintiffs from 07.09.2019 when a written reply was given by the first defendant, refuting the claim of the plaintiffs.

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The next limb of argument regarding the general directions issued by the Hon'ble Supreme Court on the

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aftermath of COVID-19 and the benefit flowing out of the orders passed in Cognizance for Extension of Limitation, In RE (2022) 3 SCC 117, is to be considered. In Sagufa , the Apex Court noticed that the lockdown was imposed only on 24.03.2020 and there was no impediment for the appellants to file the appeal on or before 18.03.2020. It was observed that to overcome this difficulty, the appellants relied upon the order passed on 23.03.2020. In paragraph-17 it was held as follows:

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“ 17. But we do not think that the appellants can take refuge under the above order in Cognizance for Extension of Limitation, In re: (2020) 19 SCC 10 . What was extended by the above order of this Court was only “the period of limitation” and not the period up to which delay can be condoned in exercise of discretion conferred by the statute . The above order passed by this Court was intended to benefit vigilant litigants who were prevented due to the pandemic and the lockdown, from initiating proceedings within the period of limitation prescribed by general or special law. It is needless

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to point out that the law of limitation finds its root in two Latin maxims, one of which is vigilantibus et non dormientibus jura subveniunt which means that the law will assist only those who are vigilant about their rights and not those who sleep over them.”

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It is noticeable that in the case of Sagufa the last date for filing the appeal expired on 02.02.2020 or 18.03.2020, i.e., before the order was passed by the Apex Court In RE Cognizance. The Apex Court refused to accept the contention of the appellants therein and declined to give the benefit of the orders passed by the Apex Court. In Arif Azim , the last date for raising the claim after expiry of the period of three years of limitation ended on 27.03.2021. While analyzing the effect of the orders passed In RE Cognizance on 23.03.2020, it was held in paragraphs-84, 85 and 87 as follows:

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“ 84. Thus, in ordinary circumstances, the limitation period available to the petitioner for raising a claim

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would have come to an end after an expiry of three years, that is, on 27-3-2021. However, in March 2020, the entire world was taken under the grip of the deadly COVID-19 Pandemic bringing everyday life and commercial activity to a complete halt across the globe. Taking cognizance of this unfortunate turn of events, this Court vide order dated 23-3-2020 passed in Suo Motu Civil Writ Petition No.03/2020 directed the period commencing from 15-3-2020 to be excluded for the purposes of computation of limitation. The said extension of limitation was extended from time to time by this Court in view of the continuing pandemic. As a result, the period from 15-3-2020 to 28-2-2022 was finally determined to be excluded for the computation of limitation. It was provided that the balance period of limitation as available on 15-3-2020 would become available from 01-03-2022.

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85. The operative part of the order dated 10-01-2022 is extracted hereinbelow :

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“ 5 . Taking into consideration the arguments advanced by the learned counsel and the impact

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of the surge of the virus on public health and adversities faced by litigants in the prevailing conditions, we deem it appropriate to dispose of MA No. 21 of 2022 with the following directions:

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5.1 . The order dated 23-3-2020 is restored and in continuation of the subsequent orders dated 08-03-2021, 27-04-2021 and 23-09-2021, it is directed that the period from 15-3-2020 till 28-2-2022 shall stand excluded for the purposes of limitation as may be prescribed under any general or special laws in respect of all judicial or quasi-judicial proceedings.

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5.2 . Consequently, the balance period of limitation remaining as on 3-10-2021, if any, shall become available with effect from 1-3-2022.

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5.3 . In cases where the limitation would have expired during the period between 15-3-2020 till 28-2-2022, notwithstanding the actual balance period of limitation remaining, all persons shall have a limitation period of 90 days from 1-3-2022. In the event the actual balance period of limitation remaining, with effect from 1-3-2022 is greater than 90 days, that longer period shall apply.

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5.4 . It is further clarified that the period from 15-3-2020 till 28-2-2022 shall also stand excluded in computing the periods prescribed under Sections 23(4) and 29-A of the Arbitration and Conciliation Act, 1996, Section 12-A of the Commercial Courts Act, 2015 and provisos ( b ) and ( c ) of Section 138 of the Negotiable Instruments Act, 1881 and any other laws, which prescribe period(s) of limitation for instituting proceedings, outer limits (within which the court or tribunal can condone delay) and termination of proceedings.”

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87. The effect of the abovereferred order of this Court in the facts of the present case is that the balance limitation left on 15-3-2020 would become available w.e.f. 1-3-2022. The balance period of limitation remaining on 15-3-2020 can be calculated by computing the number of days between 15-3-2020 and 27-3-2021, which is the day when the limitation period would have come to an end under ordinary circumstances. The balance period thus comes to 1 year 13 days. This period of

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1 year 13 days becomes available to the petitioner from 1-3-2022, thereby meaning that the limitation period available to the petitioner for invoking arbitration proceedings would have come to an end on 13-3-2023.”

¶131

However, in Delhi Development Authority in paragraph-60, the Apex Court further clarified the position, while agreeing with the view taken in Sagufa , as follows:

¶132

“ 60. Sagufa Ahmed (supra) construed that the orders passed In Re: Cognizance for Extension of Limitation (supra) were intended to benefit vigilant litigants who were prevented due to the pandemic and the lockdown, from initiating proceedings within the period of limitation prescribed by general or special law. We respectfully agree with the view taken in Sagufa Ahmed (supra). Consequently, the benefit In Re:Cognizance for Extension of Limitation (supra) can be availed by the Appellants only in a case where the period of limitation expired between 15.03.2020 and 28.02.2022.”

¶133

-32-

¶134

Having regard to the law laid down by the Apex Court, it is clear that the benefit flowing out of the orders passed In RE Cognizance, cannot be availed by the plaintiffs. As rightly submitted by the learned Senior Counsel appearing for the defendants, cause of action arose in both the suits on 07.09.2019 and 18.12.2019. Three years being the period of limitation for filing the suits, the same would end on 06.09.2022 and 17.12.2022. However, the suits are filed on 25.04.2024, long after the period of limitation. The contention of the plaintiffs that the period between 15.03.2020 to 28.02.2022 should be excluded while computing the period of limitation, cannot be accepted and is accordingly rejected.

¶135

Having regard to the facts narrated hereinabove, it is clear that from the averments made in the plaint, the issue regarding limitation can be easily decided without waiting for evidence to be recorded. The Apex Court in Shri Mukund Bhavan Trust and others Vs. Shrimant Chhatrapati Udayan Raje Prathapsinh Maharaj Bhonsle and Another

¶136

-33-

¶137

– (2024) SCC OnLine SC 3844 , has held that though it is a

¶138

settled position of law that limitation is a mixed question of fact and law and the question of rejecting the plaint on that score has to be decided after weighing the evidence on record, nevertheless in such cases, where it is glaring from the plaint averments that the suit is hopelessly barred by limitation, the court should not hesitate to reject the plaint at the threshold.

¶139

Consequently, this Court proceeds to pass the following:

¶140

ORDER

¶141

i) Both the Civil Revision Petitions are allowed . ii) The plaints in both the suits i.e., O.S.Nos.3130/2024 and 3136/2024 on the file of XXII Additional City Civil and Sessions Judge, Bengaluru, stand rejected.

¶142

Ordered accordingly.

¶143

Sd/(R DEVDAS) JUDGE

¶144

JT/DL

¶145

CT: JL

Cornerstone Properties Private Limited v. M/S. Salarpuria Hi-Rise Private Limited

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Cornerstone Properties Private Limited v. M/S. Salarpuria Hi-Rise Private Limited

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